Say that an I.R.S. agent leaks a politician's income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens' privacy and ensure a fair and efficient tax system.

To punish the agent, prosecutors may need to get the leaker's name from the reporter; but if the reporter refuses to testify because of a "journalist's privilege" to protect confidential sources, the agent may never be caught. Such a pattern is evident in the Valerie Plame matter, where an independent prosecutor is trying to learn who leaked the name of Ms. Plame, a C.I.A. operative, to the press. Uncooperative journalists, including those at The Times, may face jail.

The fate of the reporters involved in the Plame affair - and that of the reporter in Providence, R.I., who was convicted of criminal contempt last month for refusing to disclose who, in violation of a court order, gave him a tape of a city official accepting a bribe - will of course turn on questions particular to their cases. But the solution to the larger problem turns on other questions: Should there be a journalist's privilege? What should its scope be? And who exactly qualifies as a journalist?

Thirty-two years ago, the Supreme Court held that the First Amendment does not create a journalist's privilege: like anyone else, journalists must testify when ordered to do so. But Justice Lewis Powell, in a cryptic three-paragraph concurrence, wrote that there should be a modest privilege protecting journalists from unnecessary harassment by law enforcement. In such cases, he wrote, journalists should be allowed to claim the privilege, and courts should try to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

Lower courts are now split on whether the privilege exists. Legislatures likewise disagree; about two-thirds of the states have recognized a journalist's privilege of varying strengths, but the remaining states and the federal government have not. Senator Christopher Dodd has introduced a bill that would establish the privilege in federal court.

So the situation is a mess - and it's getting messier. Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.

The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Yet when everyone is a journalist, a broad journalist's privilege becomes especially costly. The I.R.S. agent, for example, no longer needs to risk approaching many mainstream journalists, some of whom may turn him in. He can just ask a friend who has a blog and a political ax to grind. The friend can then post the leaked information and claim the journalist's privilege to prevent the agent from being identified. If the privilege is upheld, the friend and the agent will be safe - but our privacy will be lost.

What's the answer? On the one hand, tips from confidential sources often help journalists (print or electronic) uncover crime and misconduct. If journalists had to reveal such sources, many of these sources would stop talking. On the other hand, some tips are rightly made illegal.

The best solution may be to borrow a principle from other privileges, like those for confidential communications to lawyers, psychotherapists and spouses. The law has generally recognized that protecting the confidentiality of such communications is more important than forcing a person's testimony.

But it has also limited the privilege. Communications that facilitate crime or fraud, for example, are not protected. I may confess my crimes to a lawyer, but if I try to hire him to help me commit my crime, he may be obligated to testify against me.

Maybe a journalist's privilege should likewise be limited. Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act - for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published - then the journalist may be ordered to testify.

Such a rule may well deter some sources from coming forward. But they will be the very sources that society should want to deter, to protect privacy and safety. In any event, the rules should be the same for old media and new, professional and amateur. Any journalist's privilege should extend to every journalist.

Eugene Volokh, a professor of law at U.C.L.A., writes for the Volokh Conspiracy blog.

I need some cheese to go with all that whine. To remember that the NYT's attempted pre-election Bushwacking with the missing Iraqi ammo dump exploded in their own faces would make even a heart of stone........crack up laughing.:)

Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers...

Ordinary? Who you calling 'ordinary', boy?! We have pajamas and bunny slippers! And this isn't Kansas anymore, Toto, so deal with it.

Maybe a journalist's privilege should likewise be limited. Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act - for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published - then the journalist may be ordered to testify.

To a professor, lawyer and journalist, like Eugene Volokh, that may seem like a workable solution, but it is just not practical. Fortunately or unfortunately, the technology exists today for the common everyday computer user to transmit secret information to a web, print or video journalist (or anyone else, for that matter) with 100% anonymity.

If you have a particularly burning need to do this, you can begin your "how to" education with this FR article and the excellent links and methods it provides. "How To Steal Wi-Fi (And how to keep the neighbors from stealing yours)". You will also need to spoof the system header info that your computer can append to packets of transmitted data, but that's a relatively simple task.

Oh, but I'm sure the Gubmint will protect all our rights after the upcoming "9/11 Bill" that all the so-called conservatives want, is passed, and our drivers' licenses are linked to our SSNs and our medical records and our financial records?? They'll protect us *then*, won't they? Huh???

13
posted on 12/02/2004 1:02:31 AM PST
by fire_eye
(Socialism is the opiate of academia.)

Two people conspiring together (an inside source and a reporter) to leak priviledged government information partipate in a conspiracy to commit a crime.

Say that an I.R.S. agent leaks a politician's income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens' privacy and ensure a fair and efficient tax system.

To punish the agent, prosecutors may need to get the leaker's name from the reporter; but if the reporter refuses to testify because of a "journalist's privilege" to protect confidential sources, the agent may never be caught. Such a pattern is evident in the Valerie Plame matter, where an independent prosecutor is trying to learn who leaked the name of Ms. Plame, a C.I.A. operative, to the press. Uncooperative journalists, including those at The Times, may face jail.

The Times also broke the law in printing the transcript of the illegally obtained private phone call between Newt Gingrich and his legal team.

If the tax returns of a politician are such a matter of "public interest", why didn't we get to see Teresa Heinz's report in a timely manner? What did the mainstream media make more of a fuss about her stonewalling?

This is gotcha journalism.

Anyone who would leak military plans/secrets (whether or not they are ever prosecuted) is a traitor who provides aid and comfort to the enemy.

This is pure "courtesy" that we play like journalists have some special privacy claus afforded lawyer-clients,defendants/spouses, and doctor/patient. BTW, if a doctor/patient relationship is "private", why are gunshot wounds reported to the police?

Either every citizen has the right to refuse disclosure, or none of us do. The media elites do not live in an ivory tower.

On the one hand, tips from confidential sources often help journalists (print or electronic) uncover crime and misconduct.

Journalists' job is to REPORT news, not make it. They hold no legal prosecution power. If there is a crime committed and they are given evidence of it, hand it over to the proper authorities. If they want an investigation by members of government, pass it along to elected representatives.

A journalist has to be able to "trust" his source. Some editors require several sources for any "story".

Anonymous transmition betrays that trust. How many more "National Guard memos" does the press need to receive? Who is to be held accountable?

The media acts like it is a court. Present damning evidence and let the accused prove his innocence. We are innocent until proven guilty in this country. The press would have you believe otherwise. When a witchhunt/zogbyism story doesn't turn out as expected, it quietly drifts off the front page to the interior and then the resolution is never printed until months later if at all.

"A journalist has to be able to "trust" his source. Anonymous transmition betrays that trust."

That would be incorrect.

Knowing the identity of your source is only one of many way for the reporter to establish trust in his source. Take the article example of an IRS agent leaking a politician's income tax return. The simple and obvious way to maintain anonymity and yet firmly establish trust with the reporter would be to include a copy of the journalist's own income tax return along with the politician's.

The journalist would probably resent the intrusion into his own private life and push for an investigation into who is leaking information. It could also be considered "blackmail", print this or I'll leak information on you...

Anonymous transmition betrays that trust. How many more "National Guard memos" does the press need to receive?

The press is lazy, otherwise they wouldn't be so easily duped.

Things have been posted here on FR from anonymous sources, and FReepers descend on those postings like terriers on rats -- "How do you know this? Where's your source? Is that the only source you have?"

If it's a truly juicy piece of gossip, like the "James Carville beat up Mary Matalin" bombshell that was dropped here several years ago, FReepers are all over it trying to source it and prove it. As it turned out, the rumor was false (many of us suspect Carville himself started it in hopes of discrediting conservative news services). The "newspaper" it supposedly came from didn't exist. It took FReepers about two-three hours to find out it was false (sure ruined my day -- I was looking forward to spreading that one around).

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